JURIST Guest Columnist Christopher N. Lasch of the University of Denver discusses Attorney General Sessions’ position on sanctuary cities …

As JURIST previously reported, Attorney General Jeff Sessions has threatened to cut Department of Justice funding to so-called “sanctuary” cities. The Attorney General’s comments during the White House press briefing on March 27, 2017, and on other occasions, demonstrate that our nation’s top law enforcement official is concerned far less with enforcing the law than with pursuing the Trump administration’s political agenda.

Ignoring the Law
Anti-sanctuary politicians like to claim that sanctuary cities defy or flout federal law. President Trump, for example, in his January 25 executive order on interior immigration enforcement, claimed that “[s]anctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” Echoing this, Attorney General Sessions on March 27 likewise tried to paint sanctuary policies as defying federal law. He said that the DOJ Inspector General previously “found that these policies … violate federal law.” PolitiFact rightly rated this claim “mostly false” after consulting with immigration law experts and reviewing the Inspector General’s report [PDF], which was fairly explicit in not reaching the conclusion that any particular policy violated the law.

Sessions’s inaccurate portrayal of the Inspector General’s report fits into a larger pattern of dishonesty about the law when it comes to sanctuary policies. His remarks on March 27 suggested that sanctuary policies might violate numerous federal laws. But only one specific statute has ever been cited by those (including President Trump, in his executive order, and Attorney General Sessions, in his March 27 remarks) who suggest sanctuary policies defy federal law: 8 U.S.C. § 1373.

8 U.S.C. § 1373 is a very narrow law, addressed only to prohibitions on local law enforcement sharing information with federal immigration officials concerning a person’s citizenship or immigration status. The overwhelming majority of “sanctuary” policies across the country have nothing to say about such information sharing. (San Francisco, for example, while perhaps the jurisdiction most often maligned by the anti-sanctuary campaign, takes the position that it complies with 8 U.S.C. § 1373). Instead, most policies address whether immigration “detainers” (requests by federal immigration officials for the continued detention of a state or local inmate who is otherwise entitled to release) will be accepted by local law enforcement.

Lack of compliance with detainers is what is really at stake in the current debate over sanctuary cities. We know this because while administration officials point to 8 U.S.C. § 1373 to support the claim that sanctuary policies violate federal law, they fail to discuss any claimed violations of 8 U.S.C. § 1373. Instead, they talk about jurisdictions failing to honor detainers&#8212which is exactly where Attorney General Sessions took the conversation on March 27, trotting out the San Francisco case of Francisco Sanchez and the Denver case of Ever Valles as examples of prisoners released, despite ICE having lodged a detainer–only to be subsequently charged with murder.

We also know that detainers are what is really troubling the administration because the President’s executive order directed the Department of Homeland Security “on a weekly basis, [to] make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.” Attorney General Sessions cited this order on March 27 before turning to the Sanchez and Valles cases, claiming the DHS report showed “that in a single week, there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged or convicted of a serious crime.” The report, it turns out, was riddled with errors&#8212″corrections” to the report issued by DHS included, for example, that Franklin County, Iowa; Franklin County, New York; and Franklin County, Pennsylvania were all erroneously listed as having declined detainers in the first report. Its issuance was discontinued after just three weeks.

Despite the obsession with declined detainers, Attorney General Sessions has in his remarks demonstrated utter obliviousness to the actual law governing detainers. On March 27, Sessions suggested honoring detainers was a “fundamental principle of law enforcement” and in February at a meeting of states’ attorneys general, Sessions called it a “shocking thing” that localities were not honoring detainers. These comments suggest unawareness of a steady stream of federal court decisions since 2014. The Third Circuit US Court of Appeals, in Galarza v. Szalczyk, established that localities cannot be compelled to honor detainers. A district court in Oregon held further that localities can be held liable for Fourth Amendment violations, given that the detention requested by federal officials amounts to a new warrantless arrest that must be justified under the Constitution. This line of precedent was sufficiently strong that the Obama administration put an end to the “Secure Communities” [PDF] program (which relied heavily on detainers) because of it.

If Sessions is aware of this body of law, he is not talking about it.

Playing Politics with Immigration
The Attorney General’s attempt to paint the crackdown on sanctuary jurisdictions as an issue of enforcing the law is thus readily revealed as cynical and false&#8212a monumental misdirection. What is really driving the Attorney General?

At the February meeting of state attorneys general, California AG Xavier Becerra pointed out to Sessions that crimes rates dropped in California in part “because we have the cooperation of folks throughout the communities. We need witnesses. We need to have them cooperate with us when crimes do occur …” Becerra then noted that the Trump administration “is causing a lot of fear,” causing law-abiding undocumented people to “fear approaching law enforcement” as witnesses to crime.

Becerra was articulating a principal defense of sanctuary policies&#8212that sanctuary policies improve public safety&#8212and telling Sessions that the federal government was undermining effective local policing. One might expect Sessions, or indeed any true Republican for that matter, to fully embrace Becerra’s point. Less than two months later, Sessions would write in a memorandum [PDF] that “[l]ocal control and local accountability are necessary for effective local policing. It is not the responsibility of the federal government to manage non-federal law enforcement agencies.” This, of course, is an articulation of the classic Republican anti-federal-government viewpoint.

Sessions’s response to Becerra, however, made clear that local control over local policing is a policy that does not apply where immigrants are concerned. “I understand the argument you’ve made,” he said, even acknowledging a “certain validity to it.” But, Sessions said, “there are other countervailing principles at work.” Sessions did not elaborate on what those “countervailing principles” might be.

The fact is, the notion advanced by Becerra, that sanctuary policies improve public safety, is simply unacceptable to the Trump administration. Trump’s entire immigration platform was premised on the idea that immigrants regularly rape and murder U.S. citizens. He named five murder victims in his “immigration speech” [transcript] in Phoenix on August 31, 2016, and had parents of three murder victims speak on the first night of the Republican nominating convention. As President, he said in his executive order that sanctuary jurisdictions “have caused immeasurable harm to the American people and to the very fabric of our Republic,” and he ordered the DHS declined detainer report produced “[t]o better inform the public regarding the public safety threats associated with sanctuary jurisdictions.” Sessions, in his March 27 comments, claimed that “these policies endanger lives of every American” and that “countless Americans would be alive today and countless loved ones would not be grieving today if these policies of sanctuary cities were ended.”

These policy positions, however, are contradicted by all available data. Study [PDF] after study has shown that immigrants, regardless of status, commit crimes at lower rates than citizens. In the words of Michael Tonry [PDF[, “high levels of legal and illegal Hispanic immigration … [are] credited with contributing significantly to the decline in American crime rates since 1991.” And sanctuary policies have not made cities unsafe–the recent study by Tom K. Wong concludes that crime rates are lower and economic indicators are stronger in sanctuary jurisdictions.

JURIST guest columnist Ali Khan recently situated America’s current war on immigrants in global trends of nativism, racism and xenophobia. This, in my view, provides the answer to the question of what “countervailing principles” might cause Attorney General Sessions not only to ignore all available data on immigration, sanctuary, and crime, but to upend traditional Republican views on federal-versus-local control of policing. Trump’s anti-sanctuary rhetoric, I have argued [PDF], is racial rhetoric. It is part of an illogical, counterfactual, counter-legal, and highly successful political formula: Demonizing immigrants wins votes; deporting immigrants wins votes.

Sanctuary cities stand in the way of this political agenda. The Attorney General’s words and actions reveal that, when it comes to sanctuary cities, Jeff Sessions is not serving the role of chief law enforcement lawyer. He is just another politician chasing down votes for the President.

Christopher N. Lasch is Associate Professor at the University of Denver Sturm College of Law. His scholarship focuses on the intersection of criminal and immigration enforcement systems.

Suggested citation: Christopher N. Lasch, The Political Attorney General, JURIST – Academic Commentary, April 17, 2017, http://jurist.org/academic/2017/04/christopher-lasch-the-political-attorney-general.php.